Pub challenges $6.7M award in Mass. student’s death

BOSTON — What seemed like a casual get-together with friends turned out to be Jacob Freeman’s last.

The Northeastern University student went to a popular restaurant and pub near campus with a few friends in the early morning hours of April 1, 2007. Shortly afterward, the 21-year-old was found at the bottom of the basement stairs with a severe head injury. He died two days later.

In a wrongful-death lawsuit filed by his family, a jury found Our House East and its owners were not liable for Freeman’s death, but a judge later ordered the owners to pay $6.7 million in damages, plus costs and attorneys’ fees.

Judge Elizabeth Fahey said the pub violated the state’s consumer protection law by not getting a required permit for the stairs and ignoring building code violations. The bar owners’ failure to comply with the state building code amounted to “unfair or deceptive acts,” the judge said.

Massachusetts’ highest court plans to hear the bar owners’ appeal of her decision. The state Supreme Judicial Court has scheduled Jan. 7 for oral arguments.

The bar owners say the judge was wrong to award damages after the jury considered the same evidence and found that the bar owners were not responsible for Freeman’s death.

“What we are disputing is that the judge can ignore a jury and really kind of relegate their findings to second-class status,” said Michael Aylward, the appellate lawyer for Gainsboro Restaurant Inc., the owners and operators of Our House East.

“It seems to the defendants that you have a constitutional right to a trial by a jury, and that should mean something. In this case, it means absolutely nothing. … The judge ignored the jury’s findings and awarded the exact same damages that they had been seeking from the jury.”

But lawyers for Freeman’s family say the judge made a reasoned and thoughtful ruling after hearing testimony from employees that the stairs were a safety hazard.

The judge and jury heard testimony during the trial that the stairs were built in the 1980s and led from the kitchen to a basement, where beer kegs and other supplies were kept. Instead of a door at the top of the stairs, there were colored vinyl strips. In this way, employees could carry supplies from the basement without needing to use their hands to open a door.

Jeffrey Newman, a lawyer for Freeman’s family, said the restaurant owners never received a permit to build the stairs or later re-build them and ignored warnings from employees who told managers the stairs were dangerous.

The judge said the vinyl strips actually obscured Freeman’s view of the stairs and the stairs had poor lighting, no landing at the top, and only one railing when two were required.

“Any reasonable person observing these stairs in 2007 and before would conclude this staircase is an accident waiting to happen and is not Code compliant,” Fahey wrote in her ruling.

During the trial, Freeman’s friends said he walked to the back of the restaurant after he received a call on his cellphone. He was found at the bottom of the stairs by a restaurant employee.

Citing testimony, Newman said it was well-known to bar managers and patrons that customers regularly walked into an area close to the stairs as a quieter place to talk on their cellphones.

But the bar owners said the stairs were off-limits to customers. They also said Freeman’s heavy alcohol consumption that night contributed to his fall.

Freeman drank at a party and another bar before arriving at Our House East. He had a blood-alcohol level of 0.208, more than twice the legal limit for drivers in Massachusetts.

The judge found that while Freeman was under the influence of alcohol at the time of his fall, he was an experienced drinker who had built up a “serious tolerance” to alcohol and did not exhibit the usual deficiencies caused by drinking, including impaired walking.

“I accept that, until he began to fall, he had no knowledge of the presence of the staircase directly behind the vinyl strips,” Fahey wrote.

Aylward said the judge should not have awarded damages under the consumer protection law because Freeman’s death occurred in a private part of the business.

“The stairway was in a private part of the restaurant. It’s in the very back of the kitchen. It’s not meant for customers to use,” Aylward said. “He wasn’t there to use the stairs. He was there to stand at the bar and visit friends. The condition of the stairs had nothing to do with the consumer relationship between Mr. Freeman and Our House East restaurant.”

During the trial, the bar owners presented evidence that the stairs had never been cited by any building inspector as a code violation, despite having been built more than two decades before Freeman’s fall.

“My clients had no reason to believe that they had done anything wrong,” Aylward said.

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